COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Brooks, 2020 ONCA 605

DATE: 20200923

DOCKET: M51757

Hourigan J.A. (Motion Judge)

BETWEEN

Her Majesty the Queen

Respondent

and

Omar Brooks

Appellant/Applicant

Grzegorz Dorsz, for the appellant

Xenia Proestos, for the respondent

Heard: September 18, 2020

REASONS FOR DECISION

(a) Background

[1] The applicant pleaded guilty to possession of approximately seven grams of marijuana for the purpose of trafficking on January 17, 2008. The trial judge accepted the joint submission of a sentence of time served (30 days) with an 18-month term of probation.

[2] Approximately ten years later, the applicant moved to the United States on a temporary work visa. He had earlier attempted to enter that country but was rejected. After his visa expired, he remained in the country illegally and was arrested on January 22, 2020, by Immigration and Customs Enforcement and the F.B.I. At the time of his arrest, there was an outstanding Canadian warrant for his arrest on human trafficking charges.

[3] According to a letter from the applicant’s American counsel filed on the motion, because of his possession for the purpose of trafficking conviction, the applicant cannot be released on bond until his immigration case is concluded. He remains incarcerated in California. Nowhere in the record does the applicant explain how he was able to secure a visa given his criminal record.

[4] The applicant brings this application for an extension of time to appeal. The deadline for commencing the appeal was over 11 years ago. For the reasons that follow, the application is dismissed.

(b) Analysis

[5] The test on a motion for an extension of the deadline to appeal is well established in this court’s jurisprudence. Factors that may be relevant to the exercise of the court’s discretion include:

(a) whether the applicant formed a bona fide intention to appeal within the appeal period;

(b) whether the applicant has accounted for or explained the delay;

(c) whether the proposed appeal has merit;

(d) the length of the delay;

(e) whether there is any prejudice to the respondent; and

(f) whether the applicant has taken the benefit of the judgment.

See: R. v. Ansari, 2015 ONCA 891, 128 O.R. (3d) 511, at paras. 22-26 and R. v. Menear (2002), 2002 7570 (ON CA), 162 C.C.C. (3d) 233 (Ont. C.A.), at paras. 20-21.

[6] Ultimately, “the main consideration is whether the applicant has demonstrated that justice requires that the extension of time be granted”: Menear, at para. 21.

[7] It is evident that the applicant did not form a bona fide intention to appeal within the appeal period. To the contrary, he seems to have been content with his guilty plea and sentence for many years.

[8] I am satisfied that the applicant has adequately explained the delay. It would appear that he felt that there was no reason to challenge the conviction until he was arrested.

[9] Regarding the merits of the proposed appeal, the applicant submits that if an extension is granted, he will argue that his plea was not fully informed, "as a result of the complete absence of information he received prior to his plea." I note that the applicant has not filed an affidavit in support of his application.

[10] Watt J.A. described the nature of an informed guilty plea in R. v. Girn, 2019 ONCA 202, 145 O.R. (3d) 420, at para. 52, as follows:

An informed guilty plea means that an accused must be aware of the criminal consequences of the plea and the legally relevant collateral consequences. A legally relevant collateral consequence is a consequence that bears upon sufficiently serious legal interests of the accused. Immigration consequences bear on sufficiently serious legal interests, falling within the legally relevant collateral consequences of a guilty plea: Wong, at para 4.

[11] Thus, to succeed on the appeal, the applicant would have to establish that his conviction's emigration consequences are sufficiently serious legal interests that fall within the legally relevant collateral consequences of the guilty plea. In my view, the applicant will have difficulty in establishing that he has met that threshold. A guilty plea has myriad consequences, not all of which can be considered sufficiently serious to warrant setting aside an otherwise valid plea. A consequence that the plea may impact future travel or emigration plans does not strike me as being a sufficiently serious legal interest, as it would strain the definition to include a wide variety of remote consequences that do not impact on an applicant’s legal rights in Canada. While I am not prepared to find that the proposed ground of appeal is frivolous, I believe it is very weak and has a minimal prospect of success. The merits of the proposed appeal do not, therefore, militate in favour of an extension.

[12] The length of delay, being more than eleven years, is obviously excessive. This factor suggests that granting an extension is not appropriate.

[13] Regarding prejudice, the Crown submits that it will be prejudiced on the appeal because it may be difficult to cross-examine the application on any affidavit he files given that he is incarcerated in California. I am not persuaded that this amounts to real prejudice, as there is no reason why such a cross-examination cannot be conducted remotely. The Crown also argues that if the appeal is allowed and a new trial is ordered, it will be prejudiced in prosecuting a dated charge. There is no doubt that it will be more difficult for the Crown to prove its case on a new trial, but I do not believe that such future prejudice is a significant factor at this stage. In my view, there is no substantial prejudice to the Crown.

[14] The appellant’s counsel concedes that his client took the benefit of the judgment in that he was released from custody as a consequence of the joint sentencing submission.

[15] The justice of the case is a critical factor in this application. The applicant submits that it would be inequitable for him to be subject to indefinite incarceration in the United States based on what he submits is a relatively minor offence.

[16] In considering the justice of the case, this court’s comments in Menear at para. 24 are apt:

Courts have granted an extension of time to allow an accused to attempt to set aside a guilty plea notwithstanding lengthy unexplained delay where there are unexpected consequences of the conviction, and there is good reason to doubt the validity of the conviction. The appellant attempts to bring himself within that line of cases and relies upon R. v. Gaudreault (1992), 1992 3320 (QC CA), 76 C.C.C. (3d) 188 (Que. C.A.) and R. v. Hetsberger (1979), 1979 2977 (ON CA), 47 C.C.C. (2d) 154 (Ont. C.A.). In our view, the correct principle is as stated by Carthy J.A. in R. v. Closs (1998), 1998 1921 (ON CA), 105 O.A.C. 392 (C.A.) at 394:

It is my view that such orders should be made only in exceptional circumstances where there is a real concern that an injustice may have occurred. There are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered. We must have finality except where the demands of justice dictate otherwise. [Emphasis added.]

[17] I am troubled by the applicant's failure to address in any meaningful way in his materials the impact of the human trafficking charges on his present legal situation in the United States. For example, there is nothing in the lawyer's letter regarding whether those charges would result in his continued detention or lead to his expulsion from the country. The applicant also makes much of the fact that the possession for the purpose of trafficking conviction means that he cannot obtain a bond before his hearing. However, there is no evidence regarding how long that pre-hearing custody is expected to last. Further, there is no evidence about how the applicant was able to obtain a visa, specifically whether he disclosed his criminal record.

[18] Such information would be valuable in understanding the applicant's actual legal predicament and evaluating the justice of the case. The onus is on the applicant in this motion: Menear, at para 21. The applicant’s evidentiary record must establish that the justice of the case requires granting an extension of time to appeal: See R. v. Gatfield, 2016 ONCA 23, 345 O.A.C. 197, at paras. 5-9, 14-15. I am not satisfied that the applicant has demonstrated that the justice of the case requires that the extension of time be granted.

[19] In considering all of the relevant factors and keeping in mind the overarching justice of the case, I conclude that the applicant has not met his onus for an extension.

(c) Disposition

[20] The application is dismissed.

“C.W. Hourigan J.A.”